Case Name: Abhyanker, P.C. v. Lai
Case No.: 17-CV-305497
Plaintiff/cross-defendant Raj Abhyanker, P.C. individually and dba LegalForce RAPC (?LegalForce?) demurs to the second amended cross-complaint (?SACC?) filed by defendant/cross-complainant Geneva Lai (?Lai?).
This is cross-action for employment discrimination.? According to the allegations of the SACC, LegalForce hired Lai as a patent attorney in September 2015.? (SACC, ? 7.)? At that time she had taken and passed the Patent Bar.? (Id.)? There were three other people working in LegalForce?s patent department when she was hired: Raj Abhyanker (?Abhyanker?), the firm?s principal, Laura Figel (?Figel?) and Oscar Au (?Au?).? (Id.,????? ? 8.)? Of the four, Abhyanker and Lai were the only attorneys who had passed the Patent Bar, a requirement to practicing patent law.? (Id.)? Figel was a licensed attorney who had not passed the patent bar, and Au was not a licensed attorney.? (Id.)
Both Au and Lai began working at LegalForce on the same day and were initially provided with the same training from Abhyanker (which Figel had already received) regarding how to write a patent application.? (SACC, ? 9.)? Despite having different qualifications, Lai, Au and Figel has the same responsibilities and duties within the patent department including, among other things, meeting with clients and preparing and reviewing patent applications.? (Id., ? 10.)? All three were also encouraged to find new clients for the firm. Au, who was represented on the firm website to be an attorney, performed all of the same patent responsibilities that Lai did, short of signing patent filings.? (Id.)
In April 2016, Abhyanker met with the patent team and, directing his comments solely to the two women in the room, advised them that they needed to start finding their own clients.? (SACC, ? 11.)? Shortly after that, in a meeting the following month, Abhyanker told the two women that they would be required to make a quota of $8,000 by May 25, 2016, i.e., in a matter of weeks, or they would be terminated.? (Id.)? This was nearly an impossible task.? (Id.)? Abhyanker further stated that each woman would have a quota of $30,000 per month after May 25th.? (Id.)? Lai and Figel were then required to off load their patent work to Au in order to devote their time to finding new clients.? (Id.)
Concerned that she and Figel were being treated unfairly compared to Au because of their gender, on May 10, 2016, Lai made a complaint to Human Resources (?HR?) regarding her concerns.? (SACC, ? 12.)? She also communicated concerns she had regarding possible ethical issues occurring at that time, including fee-splitting with non-attorney staff. (Id.)? While Lai was told that HR would conduct a neutral investigation, she developed concerns about the investigator?s neutrality, including that the investigator had recently been offered a higher salary to stay with the employer.? (Id.)? These concerns were brushed aside.? (Id.)
On May 27, 2016, Lai was informed that her employment was terminated because she was not a ?good fit.?? (SACC, ? 14.)? At the same time, she was told that the HR investigation concluded that there was no discrimination.? (Id.)? Lai was the only one terminated despite the fact that only she had managed to meet the $8,000 quota by the deadline.? (Id.)? Lai alleges that she was terminated in retaliation for raising concerns about possible gender discrimination.? On February 15, 2017, Lai filed her original cross-complaint[1] asserting claims for: (1) unlawful sex discrimination; (2) declaratory relief; (3) unlawful retaliation; (4) violation of Labor Code sections 98.6 and 1102.5; and (5) wrongful termination as against public policy.
LegalForce subsequently demurred to each of the five causes of action asserted in the cross-complaint on the ground of failure to state facts sufficient to constitute a cause of action.? On May 9, 2017, the Court sustained the demurrer with leave to amend as to the first cause of action and overruled it as to the remaining four claims.? On June 12, 2017, Lai filed the SACC asserting the same five causes of action as in the original cross-complaint.? On July 13, 2017, LegalForce filed the instant demurrer to the first cause of action in the SACC on the ground of failure to state facts sufficient to constitute a cause of action.? (Code Civ. Proc., ? 430.10, subd. (e).)? Lai opposes the motion.
In demurring to Lai?s first cause of action for unlawful sex discrimination, LegalForce asserts the same argument that it did in its demurrer to this claim in the original cross-complaint.? That is, LegalForce contends that Lai?s first cause of action fails on its face because she and Au were not similarly situated and thus she has not and cannot plead a claim for gender discrimination.
Generally, in order plead a prove a prima facie case of gender discrimination, a plaintiff must establish the following: ?(1) she is member of a protected group; (2) she was subjected to an adverse employment decision; (3) she was qualified for the position; and (4) she was replaced by a person outside the protected class, or similarly situated non-protected employees were treated more favorably.?? (Vincent v. Brewer Co. (6th Cir. 2007) 514 F.3d 489; 494; see also Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355-356.)? In order to plead a circumstance suggesting discriminatory motive, a party can allege he or she was fired when others, with similar jobs and duties but not in the protected class, were retained.? (Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1318.)
As she did previously, Lai bases her discrimination claim on allegations that she was treated differently from her male co-worker Au.? The demurrer to this claim in the cross-complained was sustained by the Court after it found to be persuasive LegalForce?s contention that Au was not a similarly situated employee because he was not an attorney and could not practice patent law.? Liu contends that she has sufficiently addressed the Court?s concerns with the SACC by pleading that she and Au had similar jobs and duties within the patent department, including: ?meeting with clients for invention disclosures; preparing and reviewing patent applications; preparing responses to patent office actions; managing a patent docket and patent staff in India; preparing patent searches and opinion letters, among other things.?? (SACC, ? 10.)? She has also added allegations that everyone at the firm, regardless of position, was encouraged to find new clients, and Au performed all of the same patent responsibilities that Lai did, ?short of signing patent filings.?? (Id.)? LegalForce insists that the foregoing is insufficient to overcome the critical distinction between Lai and Au: the former was a licensed patent attorney while the latter was not.
For the purposes of a discrimination claim, ?individuals are similarly situated when they have similar jobs and display similar conduct.?? (Vasquez v. County of Los Angeles (9th Cir. 2003) 349 F.3d 634, 641.)? ?[W]hether two employees are similarly situated is ordinarily a question of fact.?? (Beck v. United Food & Commercial Workers Union Local 99 (9th Cir.2007) 506 F.3d 874, 885, fn. 5.)? ?The employees? roles need not be identical; they must only be similar in all material respects.?? (Hawn v. Exec. Jet Mgmt., Inc. (9th Cir. 2010) 615 F.3d 1151, 1157 [internal citations and quotations omitted].)? Critically, ?[m]ateriality will depend on context and the facts of the case.?
Here, the Court finds that the additional allegations to Lai cross-complaint are sufficient to overcome the deficiency that prompted the Court to previously sustain LegalForce?s demurrer to the first cause of action.? Though the Court appreciates that Lai is alleged to have been a licensed patent attorney and Au is not, it is not prepared to determine at this juncture, based solely on the pleadings, that they were so dissimilarly situated in their roles at LegalForce in the patent department that Lai cannot maintain her claim for gender discrimination as a matter of law.? Importantly, this is generally a question of fact (see Beck v. United Food, supra), and the Court must accept as true for the purposes of this motion Lai?s allegations that she and Au essentially had the same responsibilities and duties within the patent department.? (Aubry v. Tr-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967 [stating that for purpose of testing sufficiency of a cause of a cause of action, the demurrer admits the truth of all material facts properly pleaded].)? Accordingly, LegalForce?s demurrer to the first cause of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.
[1] In the underlying complaint in this action, Abhyanker asserts claims against Lai for breach of contract and misappropriation of trade secrets.